Flexible Work Arrangements: How to Request and What to Do If Refused

The right to request flexible working arrangements is enshrined in section 65 of the Fair Work Act 2009 as part of the National Employment Standards (NES). Put simply, it applies to all national system employees regardless of their employer's internal policies. If your employer doesn't have a flexible work policy, you still have this right.

If they've a policy that is more restrictive than the NES, the NES prevails. The types of flexibility you can request include changes to hours of work — for example, working fewer hours, compressed hours (such as a 9-day fortnight), or different start and finish times.

Changes to patterns of work — such as job sharing, split shifts, or working from home on certain days. Changes to location of work — working from home, a co-working space, or a different office. You can request any combination of these. The request doesn't have to be permanent — you can request a temporary arrangement (for example, working from home for 6 months while recovering from surgery) or a trial period.

Significant amendments took effect on 6 June 2023 under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, and further amendments from 1 January 2024 under the Closing Loopholes Act, which together substantially strengthened employee rights and employer obligations in this area.

You can make a request for flexible working arrangements if you have completed at least 12 months of continuous service with your employer (or, for casual employees, if you have been employed on a regular and systematic basis for at least 12 months with a reasonable expectation of continuing employment) AND you fall into one of the following categories. You're a parent of, or have responsibility for the care of, a child who is of school age or younger. You're a carer within the meaning of the Carer Recognition Act 2010 — that's, you provide ongoing care to a family member or household member with a disability, medical condition, mental illness, or who is frail and aged.

You've a disability within the meaning of the Disability Discrimination Act 1992. You're 55 years of age or older.

You are experiencing violence from a member of your family, or you are providing care or support to a family or household member who is experiencing family and domestic violence. You are pregnant. Note that these are the NES minimum eligibility requirements. Many enterprise agreements and employer policies extend the right more broadly — some allow any employee to make a request regardless of their circumstances.

Also note that the 12-month service requirement applies only to the statutory right under section 65 — your employer may voluntarily consider requests from employees with less service. No exceptions.

Your request must be in writing. Under section 65(3), it must set out the details of the change sought and the reasons for the change. While the Act doesn't prescribe a specific format, a strong request should include the following.

Your name, position, and start date to establish your eligibility. The specific change you're requesting — be precise.

Instead of 'I would like to work from home sometimes', say 'I am requesting to work from home on Tuesdays and Thursdays each week, commencing [date].' The reason for your request and which eligibility category you fall under — for example, 'I am the primary carer of two children aged 4 and 7 (school-age or younger).' How you propose to manage your workload under the new arrangement — this demonstrates you have thought through the practical implications. Any proposed trial period — offering a 3-month trial can make it easier for the employer to agree. Whether you are open to alternative arrangements — for example, if working from home on Tuesdays is not possible, would Wednesdays work? Send the request to your manager and/or HR by email so there's a clear record of the date it was submitted. Keep a copy.

The 21-day response clock starts from the date the employer receives the request (yes, really).

Under the amended section 65A, your employer must respond to your request within 21 days. Before refusing, the employer must discuss the request with you and genuinely try to reach agreement on an arrangement that accommodates your circumstances. This discussion obligation is mandatory — an employer cannot simply send a refusal letter without having a genuine conversation with you about the request and possible alternatives.

The employer can only refuse the request on 'reasonable business grounds'. Section 65(5A) lists factors that may constitute reasonable business grounds, including that the new arrangement would be too costly for the employer, there is no capacity to change the working arrangements of other employees to accommodate the request, it would be impractical to change the working arrangements of other employees or hire new employees to accommodate the request, it would result in a significant loss of efficiency or productivity, or it would have a significant negative impact on customer service.

The employer's written response must state whether the request is granted or refused, and if refused, must set out the reasons for the refusal (including the specific business grounds relied upon), set out any alternative arrangements the employer is willing to offer, and include information about the employee's right to refer the matter to the Fair Work Commission (yes, really).

The 2024 amendments introduced a game-changing right: if your flexible work request is refused, you can now take the dispute to the Fair Work Commission. Under section 65C, if the employer refuses the request, fails to respond within 21 days, or the employee is not satisfied with the employer's response, the employee can apply to the FWC for a determination. The FWC can deal with the dispute by mediation, conciliation, or making recommendations.

if these processes don't resolve the matter, the FWC can arbitrate — meaning it can make binding orders. The FWC can order the employer to grant the request, grant the request with modifications, or make any other order it considers appropriate. No exceptions.

This is a significant change from the pre-2024 position, where the FWC could only deal with flexible work disputes through non-binding recommendations. Now, the FWC has real teeth. To apply, lodge a Form F77 — Application to deal with a flexible work arrangement dispute — through the FWC website. There is no application fee.

In deciding the dispute, the FWC considers the employee's circumstances, the employer's business grounds for refusal, whether the employer genuinely discussed the request and considered alternatives, and the consequences of granting or refusing the request. Gather evidence before applying: your written request, the employer's response, any correspondence, and evidence of how the arrangement would work in practice.

About the flexible work provisions were substantially strengthened in two waves. The Secure Jobs, Better Pay Act (effective 6 June 2023) introduced the requirement that employers must discuss the request with the employee before refusing, the requirement that a refusal must be in writing with specific reasons and information about FWC review, and the FWC's jurisdiction to deal with disputes (initially limited to making recommendations). The Closing Loopholes Act (effective 1 January 2024) upgraded the FWC's power from recommendations to binding arbitration — meaning the FWC can now order an employer to grant a flexible work request.

This was a critical amendment because, before 2024, an employer could refuse a request, the employee could go to the FWC, the FWC could recommend the employer grant it, and the employer could simply ignore the recommendation. Now, the FWC can make enforceable orders, and failure to comply with an FWC order is a civil penalty provision carrying fines of up to $19,800 for an individual and $99,000 for a corporation.

Quick version: The practical effect is that employers must take flexible work requests far more seriously than before. A blanket 'no work from home' policy is no longer legally safe — each request must be considered individually, discussed genuinely, and refused only on specific, articulable business grounds. The employer bears the burden of demonstrating that the business grounds are reasonable.

While you've a legal right to request flexible work, the way you frame your request can significantly affect the outcome. Lead with business benefits: explain how the arrangement will maintain or improve your productivity. For example, working from home eliminates a 90-minute daily commute, giving you more focused work time and reducing fatigue.

The short answer? Propose a trial period: suggesting a 3-month trial with a review date lowers the perceived risk for the employer and shows you're open to adjustment. Address potential concerns proactively: if your role requires some in-person presence, propose which days you will be in the office.

If your manager is concerned about communication, propose regular check-ins or reporting arrangements. Be specific and practical: vague requests are easier to refuse. A request for 'more flexibility' gives the employer nothing concrete to agree to. A request for 'working from home on Mondays and Fridays, with all team meetings attended in person on Tuesdays' is clear and actionable.

Keep records: save copies of your written request, any emails or messages about the discussion, notes from meetings, and the employer's response. If the matter goes to the FWC, contemporaneous records are your strongest evidence. Keep records.

Know your fallback: before submitting the request, think about what alternatives you would accept. If working from home 3 days is refused, would 2 days work? Would a compressed fortnight achieve the same result? Having a Plan B demonstrates flexibility and increases the likelihood of reaching agreement (check your payslip).